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WILSON v. GRAND CENTRAL PARTNERSHIP

June 15, 2004.

ALMUS WILSON, Plaintiff,
v.
GRAND CENTRAL PARTNERSHIP, INC. and 34th STREET PARTNERSHIP, INC., Defendants.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

Plaintiff Almus Wilson ("Wilson") brings this action against his former employers, defendants Grand Central Partnership ("GCP") and 34th Street Partnership ("34th Street" and together with GCP, "Defendants"), alleging that they engaged in unlawful racial discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq and the New York State Human Rights Law ("NYSHRL"). Wilson further alleges that the Defendants retaliated against him in violation of Title VII by denying him annual raises and informing co-workers of a complaint he filed with the New York State Division of Human Rights ("SDHR"). Finally, Wilson claims that Defendants created a hostile work environment by placing him in constant fear and anxiety. Subsequently, Wilson discontinued his claims against GCP with prejudice. He also withdrew his NYSHRL claim and retaliation claim with respect to the denial of pay raise against 34th Street. Defendant 34th Street has moved for summary judgment on Wilson's remaining Title VII claim. For the reasons discussed below, the motion is granted.

I. BACKGROUND*fn1

  A. THE RELATIONSHIP BETWEEN THE PARTIES

  Defendant 34th Street provides security services for the 34th Street Business Improvement District ("BID") in Manhattan to complement those provided by the City of New York.*fn2 A staff of approximately 34 uniformed 34th Street security officers patrol the BID from 6:30 or 7:00 a.m. to midnight or slightly later in two shifts. Two security supervisors are on duty during each shift. Security supervisors have primarily administrative and supervisory responsibilities. Among other duties, supervisors inspect the security officers at roll call prior to their patrol to ensure that all officers are properly wearing safety equipment, and they observe and manage officers on patrol. Although security officers do not carry firearms, they are required to wear bullet-proof vests while on duty.

  Wilson, who is African-American, was hired as a security supervisor by GCP on July 5, 1995. In April 1998, Wilson was laterally transferred to 34th Street. Other security supervisors were transferred between 34th Street and GCP before and after Wilson's transfer to 34th Street, although those transferred often returned to their original positions. Wilson was never transferred back to his position at GCP, though his duties and salary remained unchanged after the transfer. At the time of his transfer, three of the six security supervisors at 34th Street were black.

  Wilson claims that he was transferred without explanation in an effort to eliminate the only African-American security supervisor at GCP. In response, 34th Street claims that Wilson was transferred because he was ineffective at GCP and management sought to give him "a fair shot at being a supervisor" through the transfer to 34th Street "where the security officers were not aware of his shortcomings." (Transcript of Deposition, Richard Dillon, Feb. 5, 2004, at 43:9-13.)

  B. PAY RAISES AND SICK LEAVE

  The record indicates that 34th Street had a pay structure for security supervisors that ordinarily provided pay raises on a supervisor's anniversary date. Wilson claims that he was told such raises were automatic.*fn3 Wilson was denied a raise each year during his tenure with the Defendants except in 1996. Wilson claims that after being denied a raise in 1998, he inquired of Michael Gerhold ("Gerhold"), the former Chief of Security, as to why he was denied the raise.*fn4 Wilson claims that Gerhold responded that he "put in" for Wilson's raise, but higher management denied it with no further explanation. According to Wilson, upon his further insistence, Gerhold responded, "[s]ue the son of a bitches, that's all I'm going to tell you." (Wilson Dep. at 92:20-22.)

  In response, 34th Street argues that Wilson was denied pay raises in 1988 and 1999 due to absenteeism. The record reflects that in 1998, Wilson was absent for 17 days on paid sick leave and leave without pay. In the ten months of 1999 that Wilson worked for 34th Street, he was absent for 18 days on paid sick leave and leave without pay. From the start of his employment in 1995 to his resignation in 1999, Wilson accumulated 57 sick days, whereas the next highest supervisor during that time period used only 24 sick days. (See Def. Mem. at Exs. 12 & 17.) In 1998, two other black supervisors, who were absent three days each in 1998, received pay increases. A white supervisor, Edmund Brodigan ("Brodigan"), who was absent nine days in 1998, was denied a pay raise due to absenteeism. While denying knowledge or information as to the attendance records the Defendants produced, Wilson does not challenge their accuracy, particularly as to the records of his absences.

  Wilson claims that upon being hired by GCP, all security supervisors were given unlimited sick leave. Wilson notes that 34th Street instituted the eight-day per year sick leave policy in July 1998 after he had returned from an eight-day absence, which 34th Street claims to have been unauthorized.*fn5 Wilson asserts that after this time, 34th Street gave him only eight days of sick leave, while white supervisors received many more. The record indicates that other than Brodigan's nine sick days in 1998, no other supervisor took more than three sick days in 1998 or 1999. Wilson was unable to identify any other security supervisors who were paid for more than eight days of sick leave per year. C. DISCIPLINARY ACTIONS

  On July 26, 1999, Gerhold conducted a "counseling session" with Wilson after a security officer under his supervision was observed on patrol without his bullet-proof vest. The written memorandum documenting this session makes clear that among Wilson's duties was the inspection of all squad members at roll-call and during their tour of duty to assure that they were properly uniformed and equipped. In Wilson's protest memorandum, written in response to the counseling session memorandum, he insisted that he adequately inspected the squad on the date in question and all were in proper uniform. The security officer who removed his vest claims that no roll-call had taken place that day.

  A second incident occurred on September 20, 1999 when Gerhold and his assistant, Francis Foley ("Foley"), could not make radio contact with Wilson for several hours. Wilson alleges that he was in a "dead zone" where radios are not functional. In a second disciplinary memorandum written by Foley to Gerhold, Foley claims that upon confronting Wilson about the incident, Wilson was loud and defensive in his responses and he failed to account plausibly for his inaccessibility. Wilson maintains that after the radio incident he knew that they were going to try to terminate him and that this incident was what really drove him to leave 34th Street. The record reflects that shortly after this second incident, Wilson met with Dick Barnett ("Barnett"), an associate of Wilson, about the need to find another job "immediately, because [he] felt very threatened that [he] wouldn't have job soon." (Wilson Dep. at 16:15-16.) Barnett arranged an interview for Wilson at the New York City Board of Education, where he was subsequently hired as a dean of students.

  Wilson makes note of a separate incident, in which he was not involved, where a white supervisor, James Todd ("Todd"), was not disciplined when a security officer under his supervision assaulted another officer. In response, 34th Street claims that Todd was not on duty at the time of this incident, and therefore, could not be held responsible. Wilson does not contest that Todd was not on duty when the alleged incident occurred.

  D. WILSON'S SDHR COMPLAINT AND RESIGNATION

  On or about October 15, 1999, Wilson filed a complaint with the SDHR against 34th Street, GCP, and certain individual managers. Two weeks later, on November 1, 1999, Wilson submitted his resignation, effective immediately. At or about the same time as his resignation, Wilson filed an amendment to his SDHR complaint, alleging retaliation and denial of a pay raise. In the amended complaint, Wilson claimed that 34th Street had inappropriately disclosed and displayed his SDHR complaint to colleagues, including his partner, Vincent Conroy ("Conroy"). Wilson alleges that Conroy ceased all communication with him, creating a hostile and unsafe workplace. Despite his claim that the radio incident was the real impetus for his resignation, Wilson alleges that he was forced to resign his position for health and safety reasons after the SDHR complaint was disclosed to his colleagues because the lack of communication with his co-workers jeopardized the close relationship of trust that is required to maintain safety on the job. Conroy denies knowledge of Wilson's SDHR complaint prior to Wilson's resignation.

  On October 29, 2002, the SDHR dismissed Wilson's complaint. The SDHR notified Wilson that he could appeal its decision in New York State Supreme Court by filing a petition within 60 days of the decision. Wilson, however, elected not to appeal. Wilson filed this action on February 26, 2003. Pending before the Court is ...


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